Scottish Court of Session Decisions

Subject_1 DEBTOR AND CREDITOR.
Subject_2 SECT II.

A preferable creditor can do no voluntary deed to prefer one secondary creditor to another; and if he take payment out of one subject, he is bound to assign to postponed creditors.

Chiesly
v.
Hay

Date: 19 July 1672
Case No. No 18.

In a competition an adjudger subjected to an inhibition offering to purge by payment of the debt, the creditor was found obliged to assign his inhibition, but not in so far as it might be prejudicial to other debts in his person.

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Mr William Chiesly and Mr Andrew Hay, having apprised the same lands within year and day, Mr William insisting foe mails and duties, Mr Andrew craved to come in pari passu; Mr William craved satisfaction of the composition paid to the superior, conform to the act of parliament; Mr Andrew alleged that he had inhibition upon sums in his apprising, and reduction thereupon, of Mr William's right, as being upon sums after the inhibition: Mr William offered to purge and satisfy these sums now within the legal, which would evacuate the reduction; and craved that Mr Andrew might assign him to the inhibition, as is ordinary in such cases. It was answered, that he ought not to be decerned to assign his inhibition to his own lesion, for thereby Mr William would reduce his apprising, as to the other sums that were after the inhibition.

The Lords found Mr Andrew only obliged to assign the inhibition, so that it should have no effect against his own sums.

Fol. Dic. v. 1. p. 222. Stair, v. 2. p. 108.